Government returns to Supreme Court on military transgender ban

Posted Thu, December 13th, 2018 6:56 pm by Amy Howe

Last month the Trump administration asked the justices to allow it to bypass the courts of appeals and immediately take up three cases (here, here and here) challenging the government’s ban on service in the military by most transgender individuals. Today the administration was back at the Supreme Court, giving the government a back-up option: If the justices don’t want to bypass the courts of appeals, they should at least allow the government to enforce the ban while the appeals play out. The application for emergency relief was the second one this week from the government, which on Tuesday asked the justices to allow it to enforce a policy that would bar immigrants who enter the country illegally along the southern border from seeking asylum. These kinds of requests for emergency relief have been made necessary, the Trump administration contended, because the lower courts have often gone too far, thwarting the government’s efforts to implement important policies.

The three cases now at the Supreme Court were filed in federal trial courts by current and would-be service members in Washington state, California and the District of Columbia in 2017, after President Donald Trump announced on Twitter that the U.S. military would not allow transgender individuals to serve “in any capacity.” All three courts blocked the government from enforcing the policy.

In 2018, the president directed the military to implement a memorandum from Secretary of Defense James Mattis, with recommendations from a panel of senior military officials, that would effectively ban transgender individuals from serving in the military. The trial courts rejected the government’s requests to allow it to implement the policy outlined in the new memorandum, and the government appealed.

Before the federal courts of appeals issued their rulings, U.S. solicitor general Noel Francisco went to the Supreme Court, asking the justices to weigh in – a relatively rare move known as “certiorari before judgment.” Francisco argued that the justices should step in immediately because allowing transgender individuals to serve in the military would create “too great a risk to military effectiveness and lethality”: The government can’t afford to keep the old policy in place for a year while it waits for the courts of appeals to issue their rulings and then appeals to the Supreme Court.

The service members in the three cases are scheduled to respond to the government’s appeals on December 24; the justices are likely to announce in early to mid-January whether they will take up the cases. But petitions for certiorari before judgment are not granted often; perhaps in recognition of that fact, the federal government today filed another set of briefs (here, here and here) that provides the justices with an alternative if they deny review of the petitions: putting the lower courts’ rulings on hold – and allowing the government to enforce the transgender ban – while the government’s appeals are pending.

Francisco explained that the government is not asking the justices to put the lower-court rulings on hold if they grant review of the petitions for certiorari before judgment. If those petitions are granted, the court would presumably hear oral argument in the spring and issue its decision by the end of June. If the government prevails, Francisco reasoned, it could begin to implement what he described as the “Mattis policy” relatively soon after that, so temporary relief would not be required.

But if the court does not take up the cases now, Francisco continued, the government likely would not be able to implement its policy “for at least another year and likely well into 2020—a period too long for the military to be forced to maintain a policy that it has determined, in its professional judgment, to be contrary to the national interest.”

At a minimum, Francisco suggested, the court should narrow the scope of the lower courts’ orders so that they would only apply to the specific individuals challenging the transgender ban. The government would then be able to implement the policy more broadly while litigating its appeals.

The government’s filings seemed to acknowledge the unusual volume of requests by the government for the court’s intervention, emphasizing that it “is with great reluctance that we seek such emergency relief in this Court.” But the government blamed the need to file such requests on what it characterized as the “growing trend in which federal district courts” have issued “nationwide injunctions, typically on a preliminary basis, against major policy initiatives.” These kinds of orders, the government continued, “previously were rare,” but “in recent years they have become routine” – 25 in the past two years, “blocking a wide range of significant policies involving national security, national defense, immigration, and domestic issues.”

The government has asked the justices to consider today’s request in early January at the same time as its petitions for certiorari before judgment. Because the three cases hail from different parts of the country, two of the requests go to Justice Elena Kagan, who handles emergency requests from California and Washington, while the third goes to Chief Justice John Roberts, who handles emergency requests from the District of Columbia. Both justices could ask the challengers to respond to today’s request, and could do so quickly.

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On Friday, April 3, Justice Stephen Breyer spoke to students at the United Nations International School in New York City. The justice gave his talk remotely via video call, while self-quarantining at home in Massachusetts with his wife and daughter.